An exception to this rule occurs when the sexual relationship exists between someone holding a position of trust or authority over another who is older than sixteen but younger than eighteen years of age. In such circumstances, this type of relationship may trigger the criminal charge of sexual exploitation.
The following article attempts to outline the circumstances under which a person cannot engage in sexual relations with a person who is between the ages of sixteen and eighteen years old. To learn more about defending other types of sexual offences, click here
Frequently asked questions about sexual exploitation
- What is sexual exploitation?
- How is a “young person” defined?
- What must the Crown Attorney prove in an allegation of sexual exploitation?
- How is a “position of trust” defined?
- Must the Crown also prove that the person in a position of trust exploited the young person?
- How is “touching” defined?
- How is “sexual purpose” defined?
- Can an accused be guilty of sexual exploitation if he didn’t know the young person was under eighteen years of age?
- Sentencing for Sexual Exploitation
The offence of sexual exploitation is set out in s. 153 of the Criminal Code of Canada and is engaged when a person in a position of trust or authority towards a young person or is a person with whom the young person is in a relationship of dependency
- touches (directly or indirectly) any part of the body of the young person for a sexual purpose; or
- invites, counsels or incites a young person to touch anyone for a sexual purpose.
A young person includes anyone who is over sixteen years of age but under the age of eighteen years.
The Crown must prove a “relationship of dependency” between the accused and the young person or that he was in a “position of trust or authority” with respect to the young person. The Crown must also prove a “touching” for a “sexual purpose.”
A position of trust will be determined by giving consideration to a number of factors including (but not limited to):
- The position an accused person holds in relation to the young person. Does the relationship between them creates an obligation or responsibility?;
- Whether a duty of care is imposed on the accused in relation to the young person;
- Whether the relationship is accompanied by an authority by the dominant person over the young person;
- The positions of both the accused and the complainant in whatever relationship they may have;
- the evolution of the relationship;
- the degree of control or influence by the person over the young person;
- the age of the young person;
- the age difference between the accused and the young person;
What is important is the nature of their relationship. A position of trust creates an opportunity for an individual to persuade or influence a young person.
There exists some legal authority to suggest that the accused must appreciate that he is in a position of trust or authority and must consciously use that position to obtain the sexual participation of the young person. There must be some indication that there was oppressive or exploiting conduct which, in context, demonstrates an abuse of the position.
If the accused intends to have sexual interaction of any kind with a young person, and with that intention makes contact with the young person’s body, he has “touched” her for the purposes of a sexual exploitation charge. Touching involves physical contact with any part of a person’s body. The contact may be direct, for example, touching a person with a hand or other part of the body, or indirect, for example, touching a person with an object. Force is not required. Nor does it matter whether the young person agreed to the touching. The touching must be intentional, as opposed to accidental.
The touching had a sexual purpose if it was done for the accused person’s sexual gratification or for the purpose of violating the young person’s sexual integrity, including any act meant to degrade or demean the young person in a sexual way.
Can an accused be guilty of sexual exploitation if he didn’t know the young person was under eighteen years of age?
It is not a defence that the accused believed that the complainant was eighteen years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant.
Anyone found guilty of sexual exploitation will be placed on the sexual offender registry (SOIRA) for a period of at least ten years. Where the Crown prosecutes the charge by indictment, the minimum period of time on the registry is twenty years.
Whether the Crown Attorney proceeds summarily or by indictment will also dictate the mandatory minimum punishment and maximum punishments for the offence.
Where the Crown proceeds summarily, the mandatory minimum punishment for sexual exploitation is fourteen days in jail up to a maximum of eighteen months in jail. Where the Crown proceeds by indictment, the minimum punishment is forty-five days in jail up to a maximum punishment of ten years in jail.